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blind justice 1

Exemplary Justice and Show Trials

Exemplary justice is a very old idea, and it has its origins in the inability of a political entity to effectively enforce its writ. Thus the idea of exemplary justice grows out of an intrinsic limitation of early political societies. In brief, exemplary justice is to make an example of a individual. The horrific punishments that we read about in history are largely a function of exemplary justice: it was so unusual to capture an individual guilty of a crime, that particularly brutal punishments were meted out as a deterrence. Thus the potential criminal would know that his risk of being caught was low, but that, if caught, the punishment would be so horrible that the low risk of being caught is balanced by the disproportionate consequences in the unlikely event of being caught.

It is surprisingly difficult to find contemporary sources discussing exemplary justice; contemporary philosophers of law and politics have had little or nothing to say on the topic. You will not find an entry on “exemplary justice” in any of the major dictionaries of philosophy (such works as I have cited in many previous posts), yet I found an exemplary characterization of exemplary justice from almost a hundred years ago:

“…exemplary justice, as it well known, aims to establish in the social mind a permanent association between the criminal deed and some painful consequence, in order to prevent the repetition of a similar deed in the future. This form of justice pays no regard to the offender; its attention is fixed only on the needs and welfare of society.”

Gustave A. Feingold, “The Association Reflex and Moral Development” in The Journal of Genetic Psychology, Volume 23, 1916, p. 473

Although the contemporary silence on exemplary justice might lead one to suppose that it no longer plays a role in contemporary society, in which the proportionality of retributive justice is carefully calibrated to the nature of the crime, there is one form, however, of exemplary justice that came of age in the twentieth century, and that is the show trial. The use of mass media — newspapers, magazines, radio, and television — to inflame public opinion was central to the mobilization mass sentiment against an offender whose crime subverted principles upon which a given regime was founded.

The most notorious show trials of the twentieth century were stage-managed by the most notorious political regimes of the twentieth century — Soviet communism, Nazi Germany, and communist China under Mao. However, there is a sense in which we can consider the Scopes Trial as a show trial, so such events are not unique to dysfunctional regimes. This recent innovation in exemplary justice demonstrates that, despite its antiquity, the idea of exemplary justice continues to be relevant in our time and cannot be dismissed as a defunct idea.

Civil Disobedience and Popular Ideology

Even as the idea of exemplary justice has largely fallen out of public consciousness, another idea has taken its place, which is closely related to exemplary justice, but which resemblance has not been widely recognized. I am speaking of civil disobedience. Unlike exemplary justice, the idea of civil disobedience is relatively recent, having its origins in the nineteenth century, and, quite specifically, in Henry David Thoreau’s essay, “On the Duty of Civil Disobedience.”

Unlike the idea of exemplary justice, civil disobedience is widely treated in contemporary literature. Here is a concise definition from a relatively recent source:

civil disobedience, a deliberate violation of the law, committed in order to draw attention to or rectify perceived injustices in the law or policies of a state.

The Cambridge Dictionary of Philosophy, 2nd Edition, Editor: Robert Audi, Cambridge et al.: Cambridge University Press, 1999, pp. 144-145

Civil disobedience, although a recent idea, proved to be one of the ideas that shaped the second half of the twentieth century. Mohandas Gandhi was influenced by Thoreau, and put Thoreau’s idea into practice as a mass movement in a country where the colonized masses so greatly outnumbered the colonizing forces that civil disobedience changed the direction of India’s modern history. After Gandhi, Martin Luther King jr. employed civil disobedience in the civil rights struggle in the United States, successfully turning public opinion against segregation laws in the US, which might also be said to have changed the direction of US history.

There are few ideologies that have shaped the fate of nation-states in the twentieth century, as I have pointed on in several posts, especially in relation to environmentalism, which is one of those few ideologies (cf. Ideology in our Time). While civil disobedience is not precisely an ideology, it is not entirely independent of ideology. Civil disobedience can only be effective when the campaign against formal legal institutions has the sympathy of a sufficient number of individuals that social change can be effected by the direct action of these individuals. Thus the content of civil disobedience reflects populist sentiment.

Exemplary Justice and Civil Disobedience

There is a sense in which exemplary justice and civil disobedience are each the mirror image of the other. Civil disobedience could be called exemplary defiance of the law, in order to more explicitly contrast it with the exemplary enforcement of the law. One might say that civil disobedience aims to establish in the social mind a permanent association between injustice and some socially painful consequence.

Exemplary justice is the response of formal, legal institutions to their inability to enforce their writ; civil disobedience is the response of those subject to formal, legal institutions of the inability of those institutions to enforce their writ. Both, thus, are predicated upon the intrinsic limitations of political societies, though the first approaches this from the perspective of the state while the second approaches this from the perspective of the population of the state.

Both of these ideas implicitly recognize Weber’s definition of the state as the legal monopoly on violence; exemplary justice celebrates this legal monopoly on violence, using it to social ends beyond the limits of the use of this violence, while civil disobedience exploits the legal monopoly on violence by not even seeking to employ violence but rather to employ non-violence. If the state as a legal monopoly of violence, it does not retain a legal monopoly on non-violence, leaving non-violence civil disobedience open as an avenue of protest against the state.

When one sovereign nation-state seeks to force another sovereign nation-state to do its will (a close approximation of Clausewitz’s definition of war, “War therefore is an act of violence intended to compel our opponent to fulfill our will”), it goes to war, or otherwise inflicts damage on the other nation-state. Each sovereign nation-state, reserving to itself a legal monopoly of violence, is free to use violence on other sovereign nation-states, and this is what we call war. The anarchic international system allows for the possibility of war though the de facto legitimization of redundant monopolies on violence.

Civil disobedience is parallel to war in its use of mass mobilization, and might be defined as, “an act of non-violence intended to compel our opponent to fulfill our will.”

The shift from state power to popular will is revelatory of the growth of popular sovereignty, which has been definitive of the modern era since the series of revolutions that shook the Western world from the American Revolution of 1776 to the French Revolution of 1789 and then the series of revolutions throughout Latin America that resulted in the decolonization process and the formation of independent nation-states in Latin America.

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Tuesday


industrial accidents

In Industrial-Technological Disruption I tried to describe the systemic disruptions to the cycle that drives industrial-technological civilization — science inventing technologies that are engineered into industries that create new instruments for science, leading to further inventions. This cycle of escalation is impeded by counter-cyclical trends such as science experiencing model crisis, stalled technologies, and unintended consequences of engineering.

Among the unintended consequences of engineering I specifically cited industrial accidents. I explicitly discussed industrial accidents in Impossible Desires and Industrialized Civilization and its Accidents. I also discussed industrial accidents obliquely in Complex Systems and Complex Failure, which was concerned with the ways in which complex systems fail; it is a feature of industrial-technological civilization that as science and technology become more sophisticated, the systems that they produce become more complex and therefore exemplify complex failure when they fail. We like to think that we learn the lessons of our accidents and do better next time. And we do. We learn some hard lessons at the cost of lives, capital, and wasted time.

Learning our lessons, however, does not prevent future industrial accidents, because the cycle that drives industrial-technological civilization develops by continually revolutionizing production, and the continual revolutionizing of production means that there are always new scientific discoveries, new technologies, and new industrial processes. New and unfamiliar industrial processes mean new and unprecedented industrial accidents. And it is for this reason that industrial-technological civilization will always involve industrial accidents. One could say that industrial accidents are the natural disasters of industrial-technological civilization.

Thus while industrial accidents seem to be mere contingencies, ultimately irrelevant to the great project of industrialization, they in fact play a constitutive role in industrial-technological civilization, much as natural disasters play a decisive and constitutive role in agrarian-ecclesiastical civilization. It cannot be otherwise, living, as we do, in an accidental world, in which the importance of the uniqueness of the individual also attaches to the uniqueness of individual events, including accidental events.

There is another sense in which industrial accidents shape industrial-technological civilization that is perhaps even more radical than that outlined above because of the way that it ties in which the maturation of industrial-technological civilization, and therefore with its potential axialization.

Many observers of the regime of contemporary industrial civilization have noted that regulation almost always comes after there has been a major accident that results in multiple deaths. This is one of the ways in which the representatives of the institutions of industrial-technological civilization attempt to demonstrate to their constituents that they have learned the lessons of industrial accidents and are taking measures to address the problem. But, as observed above, industrial-technological civilization will always produce industrial accidents. This means that as industrial-technological civilization develops, it will always produce more accidents, these accidents will usually result in legislation and regulation to address the causes of the accident (ex post facto), and the regulatory burden on industrial will always increase even as new technologies are introduced — technologies which often make past dangers (and past regulations) irrelevant.

Thus the maturation of industrial-technological civilization becomes not an expression of the central idea of the civilization in mythological form — as with the axialization of the nomadic paradigm in the great cave art of paleolithic prehistory, or with the Axial Age religions delineated by Jaspers — but a legalistic compilation of regulations (and it could be argued that this formal legalism represents the essential idea of industrial-technological civilization). We have seen this before in civilization, as with the Corpus Iuris Civilis of the Byzantines, also known as Justinian’s Code.

The increasing legal formalism of mature industrial-technological civilization has significant consequences. In an early post, Exaptation of the Law, I argued that law has an intrinsic bias in favor of the past. In that post I wrote the following:

If we think of the common law tradition, in which there is no constitutional basis but only a history of case law, it is obvious that precedent plays a central role. A ruling in the past establishes a convention that is followed in later rulings preserves the past into the present. And we may think of the establishment of a constitution or formal statutes as a “re-setting” of precedent. Laws and constitutions are not written in a vacuum, and the legal history that precedes such an effort must loom large in the minds of those so occupied.

Industrial-technological civilization develops by continually revolutionizing production, and yet it is being driven by its own institutions in the direction of legalistic regulation biased in favor of the past. This tension comes dangerously close to institutionalizing permanent stagnation, which suggests that the development of industrial-technological civilization carries within itself the seeds of its own existential risk.

And we must not fail to see the central role of procedural rationality in industrial-technological civilization. In Capitalism and Human Rights I argued that the rule of law essential to the emergence of industrial capitalism was subsequently exapted by human rights advocates, and since a rigorous conception of property rights, rigorously observed, is a necessary condition of the development of industrialized capitalism, once these rigorous legal institutions began to be applied to human rights such claims could not be readily denied without calling into question the same property rights that made that civilization possible.

Thus we already have a reference in which industrial-technological civilization has been forced by its own institutions to accept principles that could be said to compromise the unconditioned pursuit of industrial capitalism. It is, then, not unprecedented to speculate that these same rigorous legal institutions of industrial-technological civilization may force that civilization into strangling itself with regulations and legislation that is feels compelled to observe even at the expense of its continued vitality. Indeed, in so far as the first signs of stagnation are social ossification and a de facto feudalism within industrial society, we can see that this growing legalism is perfectly consistent with the view that crony capitalism may be the mature form of industrial-technological civilization.

While this is not a happy prospect for me, the good news here is that, in so far as permanent stagnation is an existential risk of industrial-technological civilization, if we can understand the structures that generate this risk, we can employ our knowledge in the mitigation of that risk.

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Exaptation of the Law

24 March 2009


philosophy-and-law

Usually I don’t think much about the philosophy of law, but I recently listened to fourteen lectures on the philosophy of law delivered by Stephen Mathis as part of the Modern Scholar series produced by Recorded Books. Recently I wrote about social exaptation, and it occurs to me now that law is one among social institutions that might be exapted.

Exaptation is a constant in our lives. Whether it takes the form of tennis balls used as toys for dogs or shopping carts used as portable storage for the homeless or in a more abstract form such as the humorous exaptation of concepts in irony, we are surrounded by both things and ideas that are put to use for purposes other than those for which they were intended or for the function they naturally emerged to serve.

Although Mathis’ lectures on the philosophy of law were not tendentious or ideologically motivated, one thing I took away from listening to them was the extent to which the law is intrinsically conservative, or, perhaps better (as that ideological word invites misunderstanding), law has an intrinsic bias in favor of the past.

How does this bias toward the past come about? If we think of the common law tradition, in which there is no constitutional basis but only a history of case law, it is obvious that precedent plays a central role. A ruling in the past establishes a convention that is followed in later rulings preserves the past into the present. And we may think of the establishment of a constitution or formal statutes as a “re-setting” of precedent. Laws and constitutions are not written in a vacuum, and the legal history that precedes such an effort must loom large in the minds of those so occupied.

The presence of the past in the law immediately puts us in mind of the claims made on behalf of the “original intent” of the founders, i.e., those who wrote the US Constitution. I am deeply skeptical of these original intent arguments; Mathis’ lectures were not exactly sympathetic to the doctrine, but seemed ready to give the idea the benefit of the doubt. I am skeptical about it because most of the advocates of the doctrine of original intent in the law are ideologically motivated and are promoting a reactionary social agenda.

Some of the objections to the historically informed performance movement in music are entirely parallel to the arguments that have been put forward against the role of original intent in law.

Besides the bias toward the past in law, another thing I took away from the lectures was the role of principle in law. Mathis emphasized that judges, in reviewing law, look for a principle and resist a patchwork of ad hoc legislative acts with no real legal principle involved in them.

What is the principle behind original intent as a legal doctrine? It could be formulated in many ways, but one formulation of original intent could be cast in terms of exaptation. Original intent is a proscription upon the exaptation of law.

As a principle, this strikes me a being rather weak and with no theoretical standing. Why ought law not be exapted? Why should we not apply laws differently than intended by the legislators who wrote them?

One can easily imagine a society in which the exaptation of law is pushed to the utmost extent for the express purpose of testing the limits and possibilities of the law. A creative and innovative society might want to experiment with the law in this way to determine its precise meaning and scope.

Indeed, one need not imagine such a society, because this society is in fact our society. Where there is a financial incentive to re-interpret the law to the furthest extent of possible meaning, a way is found to justify this re-interpretation. One need only think of the many notorious lawsuits that routinely are reported in the popular press, in which an excuse is found to press a case against who ever has “deep pockets,” however obliquely related they may be to the cause of the lawsuit.

And then there is the obvious example of tax law. The tax law code is so large and so complex that many attorneys devote their entire careers to specializing in one small part of the tax code. No sooner is tax legislation formulated than a whole industry devotes itself to finding a loophole that will exempt their paymasters from having to pay taxes.

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